SDV Insights

On March 26, 2020, Michelin-rated Napa Valley restaurants, French Laundry and Bouchon Bistro, and their celebrity chef, Thomas Keller, filed the second known coronavirus-related declaratory judgment (DJ) lawsuit by a restaurant. The restaurants filed their DJ against Hartford Fire Insurance Company just seven days after Napa County issued a Shelter at Home Order.

Companies across all industries have been deeply impacted by the social-distancing protocols and economic slowdown caused by the COVID-19 pandemic. Naturally, competent business owners have looked to their commercial business and property insurance programs to determine what coverage, if any, they may have to offset the financial losses being suffered. To their dismay, many such entities have discovered that their policies specifically exclude losses related to virus.

On Tuesday, March 24, 2020, the Chickasaw and Choctaw Nations (the "Nations"), located in Oklahoma, filed separate business interruption coverage lawsuits against their collective group of insurers who allegedly issued "all risk" policies to both Nations.

If approved, New York Draft Assembly Bill A10226 (the "Bill") would require property insurers to cover business interruption losses resulting from the COVID-19 pandemic. The Bill would have immediate retroactive effect applying to property policies containing business interruption and loss of use and occupancy coverage, and in force on March 7, 2020, the date Governor Cuomo declared a State of Emergency.

On March 24, 2020, the Massachusetts and Ohio legislatures proposed bills that would provide insurance coverage to small businesses for business interruption losses sustained during the COVID-19 pandemic. These new developments come less than two weeks after New Jersey became the first state in the nation to introduce legislation on this issue.

COVID-19 Business Interruption Challenges

A New York appellate court, in its recent decision in All State Interior Demolition Inc. v. Scottsdale Ins. Co., 92 N.Y.S.3d 256 (N.Y. App. Div. 2019), held that the allegations in a third-party complaint triggered an insurer's duty to defend an additional insured, even when the third-party complaint was filed by the additional insured.

No person or industry in the world will go unaffected by the COVID-19 pandemic. Two related industries that are being hit the hardest are the hospitality and the commercial real estate industries. The hospitality industry is comprised of four segments: food and beverage (F&B), travel and tourism, lodging, and recreation. These four segments often overlap with each other and most segments overlap, to some extent, with the commercial real estate industry.

Boston's recent decision to temporarily shut down city construction projects has many in the industry asking what impact, if any, a COVID-19 related shutdown would have on project insurance.

Every day brings new challenges and concerns as the world grapples with the novel coronavirus. Businesses are already looking to their insurance portfolio as a way to lessen the anticipated impact on their bottom line. Policyholder and insurer side litigators alike seem to agree that we will likely see coronavirus-related coverage issues litigated for years, long after the pandemic has been contained.